CIVIL APPEAL 186/1996 on 30 August 1996

1. The Central Bureau of Investigation, Patna through the Superintendent ofPolicePolice

2. The Executive Engineer, Road Construction Department, Western RoadDivision, BhagalpurDivision, Bhagalpur

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with

Criminal Revision No. 735 of 2016

Arising Out of PS. Case No.-25 Year-1997 Thana- C.B.I CASE District- Patna

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Sanjay Sureka, son of Sitaram Surkea, Resident of House No. 6, Hasting ParkRoad, P.S Alipur, Town & District- Kolkata.

... ... Petitioner/s

Versus

1. The Central Bureau of Investigation , Patna through the Superintendent ofPolice.Police.

2. The Executive Engineer, Road Construction Department, Western RoadDivision, Bhagalpur.Division, Bhagalpur.

======================================================

with

Criminal Revision No. 733 of 2016

Arising Out of PS. Case No.-25 Year-1997 Thana- C.B.I CASE District- Patna

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Subrata Basu @ Subroto Basu, son of Saroj Basu, Resident of village + Post-Akara Jagarnath Nagar, P.S.- Mahesh Tala, Distt.- 24 Pargana (South), W.B.

... ... Petitioner/s

Versus

1. The Central Bureau of Investigation, Patna through the Superintendent ofPolice.Police.

2. The Executive Engineer, Road Construction Department, Western RoadDivision, Bhagalpur.Division, Bhagalpur.

======================================================

Appearance :(In all cases)

CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH

JUDGMENT AND ORDER ORAL

Date : 07 -03-2018

The above three Criminal Revision applications ariseout of the common judgment and order dated 16.04.2016,passed in RC No.25A/1997 by learned Special JudicialMagistrate, C.B.I.-II, Patna, whereby she has rejected thepetition filed under Section 239 of the Cr. P.C. on behalf of thepetitioners for their discharge. The said RC 25A/1997 has beenregistered by the C.B.I. for the offences punishable underSections 409, 420, 467, 468 and 120B of the IPC and Section13(2) read with Section 13(1) (D) of the Prevention ofCorruption Act.

2. I have heard Mr. Abhay Kumar Singh, learnedSenior Counsel appearing on behalf of the petitioners and Mr.Bipin Kumar Sinha, learned counsel for the Central Bureau ofInvestigation (hereinafter referred to as the “C.B.I.”).

3. Before I take up the ground for challenge to theimpugned order, there are certain facts which are to be takennote of.

4. On an information given by the then ExecutiveEngineer, Road Construction Department, Bhagalpur (West), acase was registered by the Sultanganj Police Station asSultanganj P.S. Case No. 186/1996 against one Anandi PrasadAmit, Junior Engineer, alleging that he had verified the stockposition of bulk bitumen on 30.08.1996 under the charge of thesaid Anandi Prasad Amit, located at Sultanganj Sub Divisionaloffice campus and Kacha VATs at 3[rd] KM at Sahkund, AsargunjRoad. Against the balance of 126.248 MT of bulk bitumen asreflected in the stock account of the said Anandi Prasad Amit,the Junior Engineer, only 45.347 MT of bulk bitumen was foundavailable at both the places and thus 80.901 MT of bulk bitumenwas detected to have been misappropriated. With the allegationthat the said Aandi Prasad Amit had misappropriated 80.901 MTof bulk bitumen valued at Rs.4,08,065/-, the said Sultanganj P.S.Case No.186/1996 was registered. This is to be noticed thathuge misappropriation of bitumen was unearthed at variousplaces in the State of Bihar, commonly known as bitumen scam,and under the orders of this Court, investigations into the casesarising out of the bitumen scam were handed over to the C.B.I.for investigation. The present case was also taken over by theC.B.I. under the orders of this Court dated 20.02.1997 passed in

C.W.C.J. No. 10417 of 1996 and accordingly RC 25(A)/1997came to be registered. In the backdrop of the ground which hasbeen taken on behalf of the petitioners to claim discharge andassailed the impugned order, it has to be kept in mind thatregistration of the FIR was with the allegation of lessavailability of bulk bitumen than it ought to have been in thestock as per the stock account. Apparently, the allegation was ofshortage of bitumen which was under the charge of the accusedAnandi Prasad Amit than what ought to have been as per thesupply made. Whether the supplier had supplied the bitumen ornot and whether the supplier had withdrawn the amount againstthe supply claims to have been made were not the factsdiscussed in the first information report.

5. In course of investigation, it has come and which isnot in dispute that M/s Reliable Transport Corporation,Kolkatta(an empanelled transporter of BPCL) was the supplier.The petitioner Sitaram Sureka of Cr. Revision No. 560 of 2016is admittedly the proprietor of the said transporter. Thepetitioner Sanjay Sureka of Cr. Revision No. 735 of 2016 is thepower of attorney holder of Sitaram Sureka, who held the saidpower of attorney to look after the transport business because ofthe old age of Sitaram Sureka is also not in dispute. Subrata

Basu @ Subroto Basu, the petitioner of Cr. Revision No. 733 of2016 was the authorized representative of the transporter atBarauni which is not in dispute. Initially, the C.B.I. hadsubmitted the the charge sheet against Anandi Prasad Amit, theJunior Engineer, only on 31.03.2003 for the offences underSection 409 of the Indian Penal Code and Section 13(2) readwith Section 13(1) (c) of Prevention of Corruption Act. TheC.B.I. on 23.05.2006, submitted second charge sheet againstthese petitioners and one Dinesh Chandra Sarkar (sincedeceased) for the offences punishable under Sections 120B, 407,420, 467, 468 and 471 of the Indian Penal Code. The secondcharge sheet was filed on the finding of investigation to theeffect that the BPCL had given carriage work for delivering thebitumen at the consignee's location to M/s Reliable TransportCorporation, Koltata. The transporter had lifted 357.43 MT ofbulk bitumen from the BPCL, Haldia between 28.10.1995 and15.07.1996 in 29 consignments to be delivered to the consignee(Road Construction Department, Bhagalpur). On analysis of themovements of the tankers present at Haldia and Sultanganj usedfor carriage for delivering the bitumen on the same day to thatbulk bitumen weighing 10.020 MT was lifted from Haldia videPOV No. 15235 dated 18.03.1996 by Tank Lorry No.

WMQ/5474, purportedly received by the said A.P. Amit on23.03.1996 on transporter’ Challan No. RTC-8553 which was insharp contrast to the fact that the same tank lorry was takinganother load on 23.03.1996 vide POV No.15685 dated23.03.1996. The C.B.I., in course of investigation, detected thatthe transporter had lifted bulk bitumen on various dates from30.01.1996 to 01.06.1996 which was never delivered to theconsignee and false receipts were obtained from the consignee.The transporter also claimed transportation charge for supply ofabout 57.760 MT bulk bitumen which was never delivered. TheC.B.I. also detected that one Dinesh Chandra Sarkar (sincedeceased) had falsely prepared sale documents and saleinvoices against the aforesaid supply order at Barauni on thebasis of ‘PDNs’ generated from Haldia without physicalreporting of the Tanker/lorries at Barauni.

6. Apparently, thus, whereas in the F.I.R. and the firstcharge sheet the allegation was of shortage of bulk bitumen inthe vats under the charge of the accused Anandi Prasad Amit,the second charge sheet revealed that the bitumen was, in fact,either not supplied or the supply was less in quantity thanshown to have been supplied and delivered. The entire case ofthe petitioners for their discharge is based on the plea that once A.P.Amit, the Junior Engineer, is held to be responsible formisappropriation of bulk bitumen which was under his charge,the allegation against the petitioners of short supply of bulkbitumen cannot sustain and their prosecution will be an abuse ofthe process of the court, if they are compelled to face the trial.

7. It is not evident from the record as to why framingof charge against these petitioners remained pending for allthese years. A.P.Amit was, however, put on trial in the court oflearned Special Judge, C.B.I.-II, Patna who has been convictedby the judgment and order dated 30.03.2012 of the chargepunishable under Sections 409 of the IPC and Section 13(2)read with Section 13(1) (c) of the Prevention of CorruptionAct and sentenced to imprisonment for a term of five years andfine of Rs. 10,000/-. It is the case of these petitioners that thereis no finding by the trial court leading to conviction of the saidA.P.Amit that there was any short supply of the bitumen by thesupplier. It is being contended that once the said A.P. Amit hasbeen held to be guilty of the offence of misappropriation of80.901 MT of bulk bitumen and thereby commission of offeceunder section 409 of the IPC, these petitioners should not beput on trial on the allegation of short supply of the bulkbitumen. This is to be noticed that the petitioner Sitaram Sureka had approached this Court seeking quashing of the order ofcognizance dated 17.03.2011 by filing an application underSection 482 of the Cr.P.C which came to be disposed of by orderdated 14.11.2013 with the observation that he shall have libertyto raise all the contentions at the time of framing of charge.

8. Mr. Abhay Kumar Singh, learned Senior Counselappearing on behalf of the petitioners, has submitted that theallegations made in the two charge-sheets indicating ‘shortageand ‘short supply’ are mutually exclusive and both cannot existsimultaneously. If there is allegation of shortage of bulk bitumenunder the charge of co-accused A.P.Amit and misappropriationby him, there would be no question of short supply by thetransporter. It is his plea that the allegation of short supply in thesecond charge sheet is not substantiated by any material. Hecontends that in the first charge sheet, it is the specific case ofthe C.B.I. that entire bulk bitumen lifted from Haldia had beendelivered by the transporter to the consignee, i.e., RoadConstruction Department, Bhagalpur. Relying heavily on thejudgment of conviction of the Junior Engineer, A.P.Amit, hehas referred to the explanation given on behalf of A.P. Amit forshortage of 80.901 MT of bulk bitumen which are as follows:- “Bitumen was kept in Kacha Vatsin open sky and the same spread up on earth.

All pot holes on the road wererepaired on the visit of the Hon’bleChief Justice.

Pot holes were repaired at the timeof Shrawani Mela.”

9. In the background of the above, he has relied on a

Supreme Court decision in case of Union of India vs. PrafullaKumar Samal, reported in (1979) 3 SCC page 4 and hassubmitted that since no prima facie case is made out againstthe petitioners giving rise to even strong suspicion againstthem, they have a right to be discharged. He has also relied onSupreme Court decisions in cases of Harshendra Kumar D.vs. Rebatilata Koley, reported in (2011) 3 SCC 351 (para 25),Vikram Cement vs. State of M.P., reported in (2015) 11 SCC711, Prashant Bharti vs. State (NCT of Delhi), reported in(2013) 9 SCC 293 para 22) and Anita Malhotra vs. ApparelExport Promotion Council, reported in (2012) 1 SCC 520para 20). He has argued that in view of the findings of the trialcourt in the trial against A.P.Amit, the principle of issueestoppel will apply in the present facts and circumstances of thecase, the findings of the trial court being binding in naturearising out of the same transaction.

10. Learned counsel appearing on behalf of the C.B.I., on the other hand, submitted that the materials collected in course ofinvestigation by the C.B.I. leading to submission of the secondcharge sheet cannot be said to be groundless for applying theprovision under Section 239 of the Cr. P.C. It has been arguedthat while considering a case for discharge the court is notrequired to go deep into the matter and examine the adequacyor sufficiency of the evidence for conviction of an accused.Relying on a decision of this court in case of Subidha Devi &

Ors. vs. State of Bihar, reported in 2015 (3) CRI. L.J. 2906,he has contended that the evidence recorded in a separate trialarising out of the same F.I.R. cannot be the record of the caseand evidence recorded in separate trial, though arising out ofthe same F.I.R., cannot be perused while considering anapplication under sections 227/228 of the Cr.P.C., for thepurpose of discharge. Reliance has also been placed onSupreme Court decision in case of Sajjan Kumar vs. CBI,reported in (2010) 9 SCC 368 and State of Tamil Nadu vs. N.Suresh Rajan & Ors., reported in (2014) 11 SCC 709 insupport of the contention that strong suspicion is enough forthe trial court to frame charge.

11. The plea of issue estoppel which has been attempted tobe applied in the present case on behalf of the petitioners on the ground of conviction of A.P. Amit, in my view, is not acceptablein the facts of the present case. The principle of issue estoppelhas been lucidly stated by Lord MacDermott [(1950) A.C.458)]in the following words:- “The effect of a verdict of acquittalpronounced by a competent Court on alawful charge and after a lawful trial is notcompletely stated by saying that the personacquitted cannot be tried again for the sameoffence. To that it must be added that theverdict is binding and concussive in allsubsequent proceedings between the partiesto the adjudication.”

12. This principle of issue estoppel regulates and controls“re-litigation of issue…….settled by a prior litigation.”(Dixon,J.),77.C.L.R.511. In my view, the findings in a case which aredependent upon an appeal, in no circumstance, can be allowedto govern the subsequent trial. In the present case, there is nofinding in an earlier trial that there was no short supply. Thetrial court found the allegation of shortage of bulk bitumen tobe correct beyond all reasonable doubts. Even if it is presumedthat the accused in that case took the defence of utilization ofbitumen for the purposes indicated or wastage because of themanner in which it was stored, that itself cannot be the basis for these petitioners to claim discharge under Section 239 of the Cr.P.C.

13. Learned counsel for the C.B.I. is correct in hissubmission and has rightly relied on the decision of this Courtin case of Subidha Devi vs. State of Bihar (supra) wherein thecourt specifically held relying on Supreme Court decision incase of State of Bihar vs. Ramesh Singh (AIR 1977 SC 2018)that the evidence recorded in a separate trial, though arising outof the same F.I.R., cannot be perused while hearing the partiesunder Sections 227 and 228 of the Cr. P.C. for considering theprayer of the accused to discharge him from the trial. In case ofState of Andhra Pradesh vs. Kokkiligada (AIR 1970 S.C.771 at page 775, the Supreme Court held that the rule of issueestoppel cannot be extended so as to prevent evidence in theprevious proceeding and it was held not sufficient to sustain theorder for being used in support of a charge of an offence whichthe State seeks to make out.

14. There is yet another reason why the said submissionmade on behalf of the petitioners cannot be accepted. In thesecond charge sheet, there is allegation of short supply of bulkbitumen by the transporter/supplier. In the first charge sheetthere is allegation of shortage of bulk bitumen. In the second charge sheet there is allegation that the bitumen as detailed werenever delivered to the consignee and false receipts wereobtained from the consignee. There are two possibilities. Theshortage of bitumen in the godown and Kacha VAT might haveoccasioned because of short supply and preparation of falsereceipts in support of the delivery of the consignment which isthe allegation in the second charge sheet. The findings recordedby the trial court are based on the evidence adduced in the saidtrial including the defence of the accused. The said findings, inmy view, in no case, can become a ground for holding thecharge against these petitioners to be groundless for the purposeof discharge under section 239 of the Cr. P.C.

15. In case of State of Tamil Nadu vs. N. Suresh Rajan& Ors.(supra), the Supreme Court clearly held that at the stageof consideration of an application for discharge, the court has toproceed with an assumption that materials brought on recordby the prosecution are true and evaluate the said materials anddocuments with a view to find out whether the facts emergingtherefrom taken at their face value disclose the existence of allthe ingredients constituting the alleged offence. The court is notexpected to go deep into the matter at that stage. In mostunequivocal terms, the Supreme Court held that if the court thinks that the accused might have committed the offence on thebasis of the materials on record on its probative value, it canframe the charge.

16. In case of R.S. Nayak vs. A.R. Antulay, reported in(1986) 2 SCC 716 considering Sections 227,239 and 245 of theCr. P.C, the Supreme Court has held that in spite of difference inthe language of three Sections, legal position is that if the trialcourt is satisfied that a prima facie case is made out, the chargehas to be framed. In case of Onkar Nath Mishra vs. State(NCT of Delhi), reported in (2008) 2 SCC 561, the SupremeCourt laid down the law that what needs to be considered at thestage of framing of charge is whether there is a ground forpresuming that the offence has been committed. Paragraph 11 ofthe said decision is relevant and is being quoted hereinbelow:- “11. It is trite law that at the stageof framing of charge the court is requiredto evaluate the material and documents onrecord with a view to finding out if thefacts emerging therefrom, taken at theirface value, disclosed the existence of allthe ingredients constituting the allegedoffence. At that stage, the court is notexpected to go deep into the probativevalue of the material on record. Whatneeds to be considered is whether there is a ground for presuming that the offencehas been committed and not a ground forconvicting the accused has been made out.At that stage, even strong suspicionfunded on material which leads the courtto form a presumptive opinion as to theexistence of the factual ingredientsconstituting the offence alleged wouldjustify the framing of charge against theaccused in respect of the commission ofthat offence.”

17. A roving inquiry is not required to be made by thecourt at the stage of framing of charge into the pros and cons ofthe matter and whether the evidence, as has been held by theSupreme Court in case of Union of India vs. Prafulla KumarSamal (supra).

18. The only consideration which is required for the courtat the time of framing of charges is as to whether on the basisof the material on record a prima facie case is made out or not.

19. The Supreme Court decision in case of Prashant Bharti(supra) relied on by Mr. Singh, learned Senior Counsel for thepetitioners, does not support the plea for discharge.

20. In my view, it is not a fit case for interference with theimpugned order rejecting the application for discharge applying

the principle laid down in paragraph 22 of the decision in caseof Prashant Bharti (supra), on which reliance has been placed.The said judgment deals with the High Court’s power underSection 482 of the Cr. P.C pertaining to quashing of thecriminal proceeding. The Supreme Court in case of RajivThappar vs. Madan Lal Kapoor reported in (2013) 3 SCC330 made a significant observation that the power of quashingof criminal proceeding vested in the High Court under Section482 of the Cr. P.C. would have far reaching consequencesinasmuch as it would negate the prosecution/complainant’s casewithout allowing the prosecution to lead evidence. It isdesirable, therefore, that to invoke the inherent jurisdictionunder section 482 of the Cr. P.C. the court has to be fullysatisfied that the material produced by the accused is such that itwould lead to conclusion that his defence is based on sound,reasonable and indubitable facts; the material produced is suchas would rule out and displace the assertions contained incharges levelled against the accused; and the material producedis such as would clearly reject and overrule the veracity of theallegations contained in the accusations levelled by theprosecution/complainant.

21. I am mindful of the fact that these applications have been filed under the revisionl jurisdiction of this Court undersection 397 of the Cr. P.C. in exercise of which power the Courtis required to consider the correctness and legality of the orderpassed by the court below. On the basis of what has been arguedon behalf of the petitioners, I do not find that a case is made outfor discharge of these persons under section 239 of the Cr. P.C.and there is any requirement for interference with the impugnedorder of the trial court.

22. I have not referred to some of the decisions whichhave been relied on behalf of the parties, in view of thediscussions which I have made above, since they have noapplication for the relief in the present case.

23. These applications are accordingly dismissed.

(Chakradhari Sharan Singh, J)

HR/-

AFR/NAFRAFRCAV DATEN/AUploading Date07.03.2018Transmission Date07.03.2018